Freedom Watch submitted a FOIA request to the National Security Agency, the CIA, and the Defense Department for records concerning the shooting down of Extortion 17, resulting in the deaths of 30 U.S. soldiers. Freedom Watch also requested information pertaining to a congressional hearing on Feb. 27, 2014, particularly records concerning Larry Klayman, Chairman and General Counsel of Freedom Watch. After receiving nothing substantive from the agencies, Freedom Watch filed suit.Complaint issues: Failure to respond within statutory time limit

FOIA Project Annotation: Judge Richard Leon has ruled that Freedom Watch failed to exhaust its administrative remedies when it did not file an administrative appeal with the NSA pertaining to its request for records about the crash of a military helicopter in Afghanistan. Freedom Watch argued that it did not have to appeal the denial because to do so would be futile. But Leon observed that "unfortunately for plaintiff, there is no futility exception to the exhaustion requirement in FOIA cases." He noted that "even assuming, arguendo, that the FOIA exhaustion requirement were subject to a futility exception, Freedom Watch fails to demonstrate the futility of appealing the NSA's decision." He added that "an adverse decision may be 'certain' where, for example, 'an administrative agency lacks, or believes itself to lack, jurisdiction to act upon the dispute.' Here, Freedom Watch does not come close to supporting its contention that an adverse decision by the NSA was certain."
Issues: Litigation - Jurisdiction - Failure to Exhaust

FOIA Project Annotation: Judge Richard Leon has ruled that the CIA and the Department of Defense conducted an adequate search for records concerning the shoot-down of a military helicopter in Afghanistan that resulted in the deaths of 38 individuals. He also agreed that the agencies had properly invoked Exemption 1 (national security), Exemption 3 (other statutes), Exemption 5 (privileges) and Exemption 6 (invasion of privacy) in disclosing more than 535 pages with redactions. Freedom Watch argued the agency's search was insufficient. Leon pointed out, however, that "plaintiff wholly fails to present any evidence rebutting the agency's showing of a good faith search. Rather than provide any facts that create a genuine issue regarding the adequacy of the search, plaintiff asserts without support that it is 'common sense that documents clearly exist' beyond those produced." Freedom Watch questioned the agencies' reliance on keyword searches. Referring to Freedom Watch v. NSA, 783 F.3d 1340 (D.C. Cir. 2015), a recent D.C. Circuit opinion which rejected the identical argument, Leon noted that "agencies routinely rely upon keyword searches to locate responsive electronic documents. Moreover, the searches here encompassed far more than inputting keywords." The Defense Department withheld records concerning discussions of congressional testimony under Exemption 5. Leon approved the redactions, observing that they all "fit comfortably within the exemption." Leon also found the agencies had appropriately considered the segregability of the records. He indicated that a sampling of DOD's redactions "underscore the best efforts used to redact narrowly and only where specific information qualifies for withholding under Exemptions 1, 5, and 6."
Issues: Adequacy - Search, Exemption 1 - Harm to national security, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

ORDER: For the reasons set forth in the accompanying Memorandum Opinion; it is hereby ordered that the defendant's 5 Motion to Dismiss is GRANTED; and it is further ordered that this case be DISMISSED as to defendant NSA. Signed by Judge Richard J. Leon on 09/30/15. (tb) (Entered: 09/30/2015)

MINUTE ORDER denying 17 Motion for Order to Show Cause, and granting, nunc pro tunc, 22 Motion to Vacate Scheduling Order. It is hereby ORDERED that the Motion for Order to Show Cause is DENIED. It is further ORDERED that the Motion to Vacate Scheduling Order is GRANTED nunc pro tunc, and that the deadlines set forth in this Court's February 18, 2015 Order are VACATED. Signed by Judge Richard J. Leon on 12/30/2015. (lcrjl1, ) (Entered: 12/30/2015)

Consent MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Summary Judgment by FREEDOM WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 01/29/2016)

2016-02-03

MINUTE ORDER granting nunc pro tunc 33 Consent Motion for Extension of Time. It hereby ORDERED that the plaintiff has up to and including February 15, 2016, to file a response in opposition to defendant's Motion for Summary Judgment. Signed by Judge Richard J. Leon on 02/03/2016. (lcrjl1, ) (Entered: 02/03/2016)

Consent MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Summary Judgment by FREEDOM WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 02/15/2016)

2016-02-24

MINUTE ORDER granting nunc pro tunc 34 Consent MOTION for Extension of Time. It hereby ORDERED that the plaintiff has up to and including February 25, 2016, to file a response to the Motion for Summary Judgment filed by defendants Central Intelligence Agency and Department of Defense. Signed by Judge Richard J. Leon on 02/24/2016. (lcrjl1, ) (Entered: 02/24/2016)

ORDER Granting 32 Defendants' Motion for Summary Judgment; and it is further ORDERED that judgment shall be entered for defendants. SO ORDERED. Signed by Judge Richard J. Leon on 7/6/2016. (jth) (Entered: 07/07/2016)